Ceremonial Sitting of the Full Court
For the welcome of the Honourable Justice Abraham
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE FARRELL
THE HONOURABLE JUSTICE PERRY
THE HONOURABLE JUSTICE GLEESON
THE HONOURABLE JUSTICE BURLEY
THE HONOURABLE JUSTICE LEE
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE THAWLEY
THE HONOURABLE JUSTICE STEWART
THE HONOURABLE JUSTICE ABRAHAM
SYDNEY
9.33 AM, TUESDAY, 7 MAY 2019
ASSOCIATE: Presentation of commission and swearing in of the Honourable Justice Abraham.
ABRAHAM J: Chief Justice, I have the honour to announce that I have received a commission from His Excellency the Governor-General of the Commonwealth of Australia appointing me as a Judge of the Federal Court of Australia. I present my commission.
ALLSOP CJ: Thank you, Justice Abraham. District Registrar, please read the commission aloud.
DISTRICT REGISTRAR: The commission of appointment of a Judge of the Federal Court of Australia. I, General The Honourable Sir Peter Cosgrove AK MC (Retd), Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and subsection 6(1) of the Federal Court of Australia Act 1976, appoint Wendy Jane Abraham, one of Her Majesty’s Counsel, to be a Judge of the Federal Court of Australia assigned to the Sydney Registry, commencing on 7 May 2019 until she attains the age of 70 years. Signed and sealed with the Great Seal of Australia on 4 April 2019, Peter Cosgrove, Governor-General. By His Excellency’s Command, Christian Porter, Attorney-General.
ALLSOP CJ: Thank you. Justice Abraham, I now invite you to take the Oath of Office.
ABRAHAM J: I, Wendy Jane Abraham, do swear that I will bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law, and that I will well and truly serve her in the office of Judge of the Federal Court of Australia, and that I will do right to all manner of people according to law without fear or favour, affection or ill will.
ALLSOP CJ: I now invite you to subscribe to the oath. District Registrar, I hand you the commission and the oath for their subscription in the records of the Court. Congratulations Justice Abraham. On behalf of the Court and all the Judges of the Court and Registrars of the Court, I welcome you and wish you the very best in your endeavour. Thank you.
Welcome, everyone, to the Court. I acknowledge the traditional custodians of the land on which we gather, the Gadigal people of the Eora Nation, and pay my respects to their elders, past and present. I also particularly welcome family and friends of Justice Abraham.
And I acknowledge today the presence of the Judges of the Court of Appeal, including Chief Judge in Equity, Judges of the Supreme Court, the Chief Judge of the Land and Environment Court, and Judges of the Land and Environment Court, Judges of the Federal Circuit Court, District Court and former Federal Court Judges. Welcome to everyone. Mr Markus.
MR A. MARKUS: May it please the Court. I would like to begin by acknowledging the traditional owners and custodians of the land on which we meet today, the Gadigal people of the Eora Nation. I would like to pay my respects to their elders, past and present, and to extend that respect to all of Australia’s indigenous people. It is a great honour to be here today to congratulate your Honour on your appointment as a Judge of the Federal Court of Australia. I would like to acknowledge that the Government is currently in a caretaker period and, unfortunately, the Attorney-General, The Honourable Christian Porter MP, is unable to attend this ceremony today. However, I am more than pleased to be able to welcome your Honour to the bench of the Federal Court.
Your Honour’s appointment to this court represents the culmination of what has already been a distinguished career in the law. The presence of the numerous members of the judiciary and the legal profession today is a testament to the high regard in which your Honour is held and the respect you have earned over the course of your career. May I particularly acknowledge The Honourable Justice Brian Preston, Chief Judge of the Land and Environment Court, Mr Michael Sexton SC, Solicitor-General of New South Wales, other current and former members of the judiciary, and members of the legal profession.
May I also acknowledge the presence of many members of your Honour’s family and friends, in particular your brothers Bradley and Simon and their families, your aunts Moreen and Jeanette, and your uncle Brian. A full exposition of your Honour’s career to date and contribution to the law would occupy far more time than my allotted time permits, therefore this morning I will focus on just a few of the qualities and experiences that have miled your Honour’s illustrious career to date. These will no doubt shape the important contribution you will make to the court in the future.
Your Honour was educated at Loreto College in Adelaide before your admission to the University of Adelaide, where you obtained a Bachelor of Laws with Honours in 1982. Your Honour was admitted as a Barrister and solicitor in the Supreme Court of South Australia that same year. I’m told that your Honour’s parents were strong supporters of your academic and professional pursuits, and they wanted to give you and your siblings the opportunity to make the very best of yourselves. Shortly following your admission, your Honour began work as a Crown prosecutor with the South Australian office of the Director of Public Prosecutions.
I understand that this early appearance work allowed your Honour to develop your skill and expertise. You relished the opportunity to appear in duty trials from a young age and quickly stood out amongst other young lawyers. Your Honour was appointed silk in 1998, one of the youngest practitioners in South Australia to be appointed as a Queen’s Counsel. You have since been described by a colleague as the gold standard of silks. You remained with the DPP until 2005, having taken the role of Associate Director and acting as the Director for many extended periods.
In 2005 Your Honour joined the New South Wales Bar, where you were retained fulltime by the Commonwealth DPP as national appellate counsel. While your loss was felt in South Australia, this was certainly a gain for New South Wales. Since 2009 your Honour’s practice, primarily as an appellate counsel, has encompassed broader criminal work as well as appearing for the Commonwealth DPP. Throughout your career your Honour has made significant contributions to the law and legal profession, which have included prosecuting some of South Australia’s most complex and difficult criminal trials, and appearing in leading cases on appeal on a variety of subject matters.
A notable case, of course, is R v Bunting & Wagner, commonly known as the Snowtown murders case, which your Honour prosecuted at trial and later appeared as counsel on appeal. The trial was one of South Australia’s lengthiest and most complex, commencing with four and a half months of legal argument on the admissibility of evidence and involving leading evidence from over 230 witnesses and tendering more than 1000 exhibits. Further, your Honour has appeared as counsel in cases that have had a significant influence on evidence law in Australia. This includes having appeared in R v Carter, which remains a leading authority on jury directions on DNA evidence.
Your Honour has been consulted by both the Victorian Parliament Law Reform Committee and the Australian Law Reform Commission for your views regarding improving the use of DNA evidence in criminal proceedings. Your Honour also appeared in the landmark case of R v Tang, the first slavery case heard by the High Court of Australia. It is also worth noting the extensive experience that your Honour has appearing before the High Court, including 19 Full High Court appeals and over 100 special leave applications. In addition, your Honour has been a passionate teacher of advocacy within the Australian legal profession.
For many years, your Honour has been in high demand for presentations at seminars and conferences, and you have also conducted lectures and continuing legal education sessions for various organisations. I am told that your Honour’s strong belief in the importance of giving back to the legal profession means you have taken a genuine interest in the development of junior barristers, never forgetting to wish them good luck for their appearances, actively recommending them to be briefed as your juniors, encouraging them to step out of their comfort zones, and being available to talk through issues with them.
I’m also informed that as a prosecutor, your Honour demonstrated a strong commitment to victims in the judicial process, with an ability to break down and explain the law in what have often been gruelling circumstances. I have no doubt these skills will continue to develop on the Bench. Aside from your intellect and work ethic, your Honour is known for being a great friend and mentor. Your generosity of spirit combined with your expertise on a wide range of subjects has led to your Honour being described as the “ultimate phone a friend.” Even for those barely known to you, I understand you are willing to talk through any legal issues at any time.
Your Honour has also become known for your seemingly endless supply of Haigh’s chocolate, much to the delight not only of the children of your Honour’s friends but also of your fellow barristers. Indeed it is rumoured that it is more than pure coincidence that both your Honour and Haigh’s successfully made the move into Sydney from Adelaide at the same time in 2005. It has been remarked that not only will you bring a wealth of experience to the Bench, but also a generous attitude and a strong sense of public service which I understand was instilled by your father in particular.
Aside from your commitment to the community and the legal profession, I am told that your Honour is a devoted aunt to your nieces and nephews, who are here to mark this occasion with you today and that you love spending time with your family who live in Adelaide. I understand that your Honour enjoys exercise, goes to the gym and by taking walks around the harbour and that you love cricket and the AFL, being a keen supporter of the Adelaide Crows. Your Honour loves to explore the entertainment world through theatre and classic cinema, generally with a glass of shiraz.
In concluding, your Honour’s appointment to this Court is a testament to your many years of hard work and unwavering dedication to the law and justice. Your Honour’s contribution to the law has been momentous and your attitude to your work has exemplified the higher values of the legal profession as a whole. It has been remarked that your traits of generosity, discipline and care which have seen you excel in your career so far will serve you well in your role on the Bench. On behalf of the Attorney-General, the government and indeed the people of Australia, I extend my sincerest congratulations on your appointment to the Federal Court of Australia. May it please the Court.
ALLSOP CJ: Thank you, Mr Markus. Mr McHugh.
MR M. McHUGH SC: May it please the Court. I also begin by acknowledging the traditional custodians of the land on which we meet and pay my respects to their elders, past present and emerging. On behalf of the Australian and New South Wales Bar Associations, it’s a privilege to welcome your Honour’s appointment to the Court and happy birthday. It has been many years since your Honour began studying law at the University of Adelaide in 1978, graduating with Honours in 1981 and as a student, your Honour had demonstrated an early dedication to mastering law. Preparation – spending hours at a time studying at home, although I gather your Honour’s study sessions were not without creature comforts, as your Honour could be found in the lounge room with a fan heater at your feet and a television on whilst hitting the books.
Now, one cannot help but imagine reruns of the Court drama Perry Mason as the backdrop to your Honour’s study sessions. Of course, Mr Mason Esq. was a criminal defence attorney who remarkably always represented the falsely accused and yet somehow elicited surprise confessions from guilty parties on the stand. Now, real people and real cases may be different. However, your Honour shares Mr Mason’s apparent ability to zero in on key issues with the cases, advising either side as appropriate whether prosecution or defence. These insights were often critical to whether and how a case proceeded, particularly your work as a prosecutor.
And indeed that work has been described in that sense as your Honour having a keen eye for the defects in a case and suitably intolerant of impropriety, attributes which will serve your Honour well on the Bench. If it pleases your Honour, I shall spare the Court a repeat chronological recounting of your career milestones and instead seek to summarise some of your Honour’s achievements in terms of the breadth and scale of your Honour’s experience. Your Honour has appeared as counsel in numerous complex jury trials, established and maintained a national appellate practice, and as we’ve heard, regularly appeared in the High Court on applications for special leave as well as full appeals.
Indeed I have it on reasonable authority that on one such appearance before the High Court, after having demonstrated your Honour’s command of the law and the facts, that then Chief Justice Gleeson leant across to my source and noted sotto voce, “If I was ever charged with a criminal offence, I would hate to be prosecuted by Abraham QC.” That is high praise, indeed. Appearing in the High Court has necessarily involved the examination of issues relating to the Constitution and the Judiciary Act and many arguments related to the interpretation of the Commonwealth Criminal Code. Your Honour’s Commonwealth matters have included tax fraud, white collar crime and commercial prosecutions, and some of the more rarely considered offences for which your Honour ably assisted both juries and the Bench have involved sex slavery, people smuggling and terrorism related offences, particularly the early examples of those cases before the Courts.
Many of the cases prosecuted by your Honour have involved complex issues of fact and law related to serious victim-based offences as well and often involving multiple offences and multiple offenders, as we’ve heard, the Snowtown murder trials being a most high profile example. As well as confronting evidence of heinous crimes, your Honour has handled technical and scientific evidence, notably in the murder cases of Jarrett in 1994 and, as we’ve heard, Karger in 2001, the former of which was the leading authority in relation to the admissibility of DNA evidence until the latter. In doing so, your Honour has demonstrated high-level performance in examining and cross-examining expert witnesses. And your Honour has a great deal of experience in making complex evidence intelligible in Court, for the jury and no doubt often for the judge.
Your Honour has presented at countless seminars and conferences, as we’ve heard, on topics as wide-ranging as DNA, appeal Courts, child witnesses, fraud and prosecution disclosure, among others. And your Honour has regularly conducted advocacy training, including workshops to train the trainers. Your Honour has presented lectures and continuing legal education sessions for Bar Associations and Law Societies and numerous government agencies. The further note in this area is your Honour’s contributions as a mentor to junior barristers, as we’ve heard, and colleagues at 12 Wentworth Selborne tell of your Honour’s generosity and interest in assisting juniors in developing their practices.
Indeed it has not been uncommon for your Honour to spend what might be described as an inordinate amount of time, even into the night, helping juniors on the floor and, as we’ve heard, providing an endless supply of Haigh’s chocolates from South Australia. Your Honour has been counsel of choice for the Commonwealth Director of Public Prosecutions in a wide range of Commonwealth criminal law for both advice and appeal work, a preference explained by your Honour’s intellect, personal integrity, attention to detail, discipline and capacity for hard work and long hours.
Your Honour’s advice has been regarded as the gold standard. This is partly credited to your Honour’s encyclopaedic knowledge of criminal law, deep knowledge of statutory interpretation together with your Honour’s grasp of the factual material an ability to get to the nub of an issue quickly. Indeed I’ve been given your Honour’s advice on elements of a charge under – your Honour would be – we’re all very familiar with the charter of the United Nations Act 1945. Your Honour, I think your Honour’s advice is very good. My only uncertainty stems from the fact that I don’t hold the security clearance to read past the redactions.
In any event, there is yet another remarkable aspect of your Honour’s career in law which is the move, as we’ve heard, from the executive role of the Office of the DPP in South Australia to establishing a busy private practice in New South Wales. That relocation required courage and commitment to forging new professional contacts and friends at a time when your Honour’s career was already very well established, having been a lawyer in South Australia for around some 22 years and Queen’s Counsel for some seven when your Honour moved. It has now been close to 14 years since your Honour was called to the New South Wales Bar and we are grateful for your contributions, including as a chair of a professional conduct committee, among other professional commitments.
Turning to your Honour’s loyalty which is something that has come through from everyone and your family connections, your Honour has forged strong professional relationships and close friendships at the New South Wales Bar and maintained enduring relationships with colleagues and friends in South Australia, many of whom have travelled to be here in support of your Honour today. Respect of your Honour’s life outside the law, your Honour is overwhelmingly regarded as being dedicated to your Honour’s family and particularly as an amazing aunt to Tom, Georgina, Madeline and Jackson. I’m told that on every trip back to Adelaide, a night is reserved for dinner with your Honour’s older nieces and nephews at a restaurant of their choosing, with someone described as “Aunty Wendy” picking up the tab, and that your Honour’s suitcase is often filled with the latest Lego – or “laygo” as I’m told they pronounce it in Adelaide – for your youngest nephew Jackson who has officially titled your Honour as the “greatest aunt in the world.”
Your Honour has been a strong role model to not only nieces and nephews, but also younger cousins and children of your close friends. Here in Sydney, your Honour has great connections with the extended Abraham family and your Honour is rightly proud of your Lebanese heritage. Your Honour, I’m told that your parents Joseph and Janet would have been incredibly proud of your Honour’s achievements and there would have been no one more excited about your judicial appointment than your father. The announcement of your Honour’s appointment was made more personally memorable as it was a day which would have been your Honour’s father’s 90th birthday.
May I also note, as we’ve heard, your aunt and uncle Moreen and Brian McGee who have been as close as a second set of parents, I’m informed; your brothers Simon and Bradley and their partners Julie and Josephine who are in Court today, and your sister Julie who is in the United States. Your Honour, I would suggest there were not too many headaches for your brother Bradley’s managing of your Honour’s financial books, as your Honour is not a person of indulgences, that is, other than an attraction, I’m informed – from more than one source – to a sale at Armani and a penchant for Bally shoes, although I’m told they would be a sensible heel or a boot.
Your Honour has been described by colleagues in chambers as having a refined and classic elegance. New colleagues on the Court may come to know your Honour’s personal interests and preferences: as we’ve heard, the enjoyment of theatre, a glass of shiraz, a love of cricket, and of course the Adelaide Crows. And indeed they may be interested to know that your Honour is said to be a good candidate for participating in a tipping competition in chambers. As your Honour settles into judicial life, we at the Bar wish your Honour all the very best and extend congratulations from the Australian Bars. May it please the Court.
ALLSOP CJ: Thank you, Mr McHugh. Mr Moses.
MR A. MOSES SC: May it please the Court. I also acknowledge the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation, and pay my respects to their elders, past, present and emerging. I acknowledge Aboriginal and Torres Strait Islander Australians with us today. It is an honour to speak on behalf of the Law Council of Australia and Law Society of New South Wales to welcome your Honour’s appointment to the Court and also to wish your Honour a happy birthday. Your Honour will bring a wealth of knowledge and expertise to the Bench gained during a distinguished career, as well as a great diversity of talent and life experience which is the underlying strength of our profession and the judiciary.
Family and heritage mean the world to your Honour, and I recognise and welcome your family and friends with us today. You were close to your parents Joseph and Janet who have sadly passed. You had a special bond with your father and much of who you are today is a reflection of who he was as a person. As we have heard, your Honour is proud of your Lebanese ancestry. As Robert Fisk has noted in his book Pity the Nation, “it is a land of great beauty but also tragedy.” It has been said that the cedars of Lebanon know the history of the earth better than history itself, and as a child of parents who left Lebanon to the safety of this country, it is a particular privilege for me to speak at your welcome.
In addition to your Honour’s formidable legal acumen and technical insight, you bring to your new role a great respect for people and a commitment to public service and to the administration of justice. Your Honour is highly regarded as an advocate; indeed advocacy has been your Honour’s calling from the very first. When your Honour was first called to the Bar in South Australia in 1982, there were no women on the Bench of the Federal Court of Australia or the High Court of Australia and ethnic diversity was scarce. The picture is very different today and hopefully will continue to change. As Justice Ruth Bader Ginsburg of the Supreme Court of the United States has noted, “our system of justice is surely richer for the diversity of background and experience of its judges. It was poorer when nearly all of its participants were cut from the same mould.”
Your Honour prosecuted your first murder trial at just 27. From 1995, your Honour served as the associate director of public prosecutions in South Australia for 10 years. 1998 was a good year for your Honour. Not only, as we have heard, were you appointed Queen’s Counsel, your beloved Adelaide Crows successfully defended their premiership title against the odds. You are renowned for successfully prosecuting what have been labelled as some of the most complex, difficult, gruesome and gruelling criminal trials in our country’s history and your Honour has done so in the best spirit of a professional: with professionalism, grace and compassion that has not gone unnoticed. Your Honour has been described as a preeminent South Australian who stands tall above her peers in the contribution which she has made in the development of Case Law.
The now South Australian Attorney-General, Vickie Chapman, has paid tribute to your Honour’s unique commitment to victims in the judicial process, an ability to explain a law and make it accessible. These are but a few of many unique traits that fill the legal profession with great confidence your Honour will be a formidable asset to this court. As we have heard, your Honour was the prosecutor in the Crown v Bunting & Wagner, the notorious Snowtown “bodies-in-the-barrels” case. The trial made legal history in South Australia for several reasons.
Not only, as we’ve heard, was it one of the largest and longest-running trials, it was the first trial in South Australia to be conducted using an electronic court system and with evidence given, at one point, with the assistance of PowerPoint presentation. Yes, a PowerPoint presentation: we have come a long way. What is not known widely is that at the same time as prosecuting that massive trial, your Honour was also responsible for leading the Office of the Director of Public Prosecutions for 12 months. That represented an enormous workload: an exceptional effort that your Honour shouldered without complaint.
As a result of your Honour’s tireless work, South Australia became a leading authority on various aspects of legal procedure and evidence. Your Honour literally wrote the jury book to explain complicated DNA technology to jurors, and played a key role in the Joint Australian Institute of Judicial Administration, Standing Committee of Attorney-General, Conference on Criminal Trial Reform. It is no small import to note that your Honour was the subject of a motion before the South Australian Parliament in 2005 on International Women’s Day to acknowledge your service to the State as Deputy-Director of Public Prosecutions and to bemoan your Honour’s imminent departure to New South Wales.
And, as we’ve heard from my learned colleague Mr McHugh, the New South Wales Bar was very pleased to be the beneficiary of your talent, wisdom and work ethic. Others have already mentioned, but I think it bears repeating, your impressive record as the most frequent female counsel to appear in the High Court, including more than 100 special leave applications and 19 Full Court hearings. Your CV is rich in appearances in High Court cases of great importance, including many terrorism matters and, as we’ve heard, for the Commonwealth Director of Public Prosecutions in the Crown v Tang, the first conviction of a slavery offence in Australia.
I know your Honour considers this case as one of your proudest achievements. It remains a critical landmark in Australian international human rights jurisprudence, and the community owes you a great debt for your work on this matter. As we’ve heard, your Honour’s impressive practice has focussed primarily on criminal appellate case work in the High Court, but also the State’s criminal Courts of Appeal. In this respect, your Honour is uniquely qualified and equipped with a deep cross-jurisdictional comparative knowledge, which will no doubt be an asset in your new role.
Your courageous advocacy in the Bowraville case on behalf of the voiceless in our community is also worth of special mention. Although the outcome was not what was hoped for, your Honour’s dedication and tenacity left a lasting impression on those you worked with. Your Honour demonstrated great respect and empathy for the families of the murdered children, taking the time to engage with and meet with them before, during and after proceedings, to earn their trust and to show that they mattered. This was no insignificant feat, given the tragic history of the case was steeped in injustice generating understandable suspicion of authority, mistrust and disappointment in the justice system.
Though the nature of your work has meant you’ve often been exposed to the very worst of humanity, your Honour has been testament to the very best. Colleagues describe you as very inspirational with a fantastic sense of humour and personality. Your standard of work is always meticulous, and you never settle for second-best. Though many were cross-examined in research for this speech, not a bad word was to be found, and this cannot be explained away merely by suggesting that your Honour had plied all witnesses with Haigh’s chocolates. And I should warn your judicial colleagues that you are a notorious chocolate feeder, so those attempting to look after their waistlines should avoid your chambers.
One colleague started to recount a story about the method-to-madness state of your Honour’s chambers, in which I nearly tripped over a pile of papers when I visitedyour Honour, describing copious collections of coins and loose change amongst the papers, books and Lego scattered across the seats and table. This sounded a promising lead, until it was revealed the coins were routinely gathered up, taken to the bank and donated to charity – another tribute to your Honour’s trademark generosity – and the Lego bound for your 11 year old nephew, Jackson.
Another colleague described you as an enthusiastic AFL follower and Crows supporter, but noted, almost apologetically, that while you went to the games, he couldn’t say your Honour was exactly going to go out and get a tattoo, as you don’t get easily excited. Now, with respect, your Honour, it’s never too late to get excited. The Crows are just outside the top 10 and it is, after all, your birthday. Now, I just wanted to mention one comment that was made about you in the South Australian Parliament on the motion. The late South Australian MP, The Honourable Ivan Peter Lewis, said of your Honour:
To do things, often the subject of such controversial efforts, as Wendy Abraham has been able to do takes more than just raw ability and knowledge. It takes a generous nature, as well as very clever insight.
And, as we’ve heard, your Honour has been extremely generous in sharing your time and experience throughout your career with students, colleagues and juniors alike, and you’re truly cherished by your colleagues for your kindness and steadfast loyalty. Your contribution to the state, national and international profession, has been nothing short of remarkable. As we’ve heard, you’ve been an advocacy teacher for 25 years. Your Honour’s leadership and skills have made you a respected authority in high demand at home and overseas.
I’ve had the great privilege of being the beneficiary of your wise counsel at the New South Wales Bar, where you served on committees that my learned friend Mr McHugh has mentioned, as well as the silk selection committee in 2017, which you sat on with Justice Kelly Rees who you’ve become close friends with, and her Honour joins us today. Notably, as we’ve heard, your Honour has nurtured and has been a great source of strength, pastoral care and inspiration to the junior bar and a mentor to many Barristers, including many young women.
At 12th floor, Wentworth Selborne, you’ve been a core and vital pillar. Your Honour has instilled a criminal practice on the floor. You have been a friend, a confidante, a role model, a go-to person, and you will be sorely missed by many. There have been tears amongst the junior bar – happy and sad – because, Justice Abraham, you are truly treasured. But the Bar’s loss is, indeed, the gain of the Court and the Australian community. The Commonwealth Attorney-General, The Honourable Christian Porter, who I’ve congratulated on your appointment, has said that your Honour’s appointment will provide the Court with additional resources to manage the expected increase in case load as a result of intensified enforcement action by ASIC and the proposed expansion of the Federal Court’s criminal jurisdiction to include corporate crime.
The Law Council can think of no one better qualified to assist the Court in this important work. Your Honour’s exemplary knowledge and expertise will contribute to the significant regulatory and criminal jurisdictions of the Federal Court and, as with your Crows, your Honour’s skill and nerve will see us through. We wish you every success and look forward to your contribution to the Court and to the rule of law. May it please the Court.
ALLSOP CJ: Thank you, Mr Moses. Justice Abraham.
ABRAHAM J: Thank you. I acknowledge the traditional owners of the land on which we meet today, the Gadigal people of the Eora Nation, and pay my respects to elders, past and present.
Judges, former Judges, my family, friends, colleagues, ladies and gentlemen. I’m deeply honoured and very touched by your presence here today, and I would particularly like to thank those who have travelled from interstate to be here.
I thank you, Chief Justice, and my new colleagues. You have all made me feel so warmly welcomed.
It is a great honour and privilege to have been appointed to this Court. Mr Markus, Mr McHugh, Mr Moses, I thank you for your very generous remarks and birthday wishes. The date of the sitting is truly serendipitous.
It is with genuine humility that I sit here today. As happy and proud as my parents would have been today, I have no doubt that when I was born, the thought that a daughter would have had a career such as I’ve been fortunate to have, would never have entered their wildest imaginations.
When I was born my parents held fairly traditional views of family life. I remember as a young child laughing when my father said to me that when I was older I would look to my brothers – my younger brothers – for help. This reaction was not a reflection on my brothers; rather, it told more about how we were brought up.
My father was the first in his family to gain any tertiary qualification – an accounting degree – which he obtained by studying at night, part-time, while working as a junior in the public service, which is where, I might say, he met my mother. I watched him achieve professional satisfaction and success and have a lasting impact on the accounting profession. He taught me the value of preparation and hard work.
My parents were unstinting in their support of myself and my siblings. Together, they worked to provide us with the opportunities they did not have. They knew education was the heart of achieving that, and it was important to them that we went to university, and they supported each of us in that endeavour.
They provided me with the belief that I could do whatever I wanted, and the confidence, strength and resilience to deal with life’s issues, knowing always that they were there for me. I have, indeed, been blessed in life.
My father was more excited than I was when I was accepted into a law degree. I know he shed a few tears on my appointment to silk. Right until the very end, my father would always ask me about particular cases, he would remember them by name. He would want to know if I had a decision yet - and, if not, why not - because, as he said, I argued them so they must be right. While they might have thought I could not do anything wrong, unfortunately the appellate courts were not always so kind.
It was only once I started my law degree that I realised that I wanted to be a lawyer and, more particularly, a barrister. This came as a surprise to some, because at the time I didn’t fit the preconceived view of what a barrister was. Not being one to volunteer answers in tutorials I remember one tutor actually saying to me that she would hate to ever see me in a courtroom. It was with some amusement then, that some years later, having been appointed silk I had the opportunity to remind her of that.
I have been very fortunate during my career to have been provided with many opportunities; I have had some good luck - although, in fairness, sometimes this was only obvious to me with the benefit of hindsight.
When I finished my degree the job market for lawyers was very difficult. At interviews I was asked when was I going to have children, and an honours degree, with limited exception, did not help. I applied for a position at the Crown Prosecutor’s office where, at least, I got an interview, although I was no more successful.
I took a job in private practice, in a small firm. To my surprise about four months later I received a telephone call from the Deputy Crown Prosecutor asking if I was still interested, and could I come in for an interview that afternoon. The office had just created a position for the 20th prosecutor, and I was offered that position.
In that interview I was told I would have conducted my first jury trial within two weeks. I took that with a grain of salt, until it actually happened. Before that I had not seen a trial from beginning to end. I conducted 10 trials within 10 weeks before an accused absconded mid-trial, and I could stop and take a breath. While incredibly challenging, I thoroughly enjoyed it. I remained with the office for nearly 22 years. Throughout that time I was given amazing opportunities, not only in relation to trial and appeals that I conducted, but because the positions that I held provided me with opportunities to have input in, and an impact on, the broader issues in the administration of justice.
I am very grateful to Brian Martin QC, then Crown Prosecutor, later Justice Martin of the Supreme Court of South Australia, and Chief Justice of the Northern Territory, who took a chance on me by giving me the opportunity to become a prosecutor back in 1983. I was only just 23 years old at the time.
I also want to mention Paul Rofe QC, who was the South Australian Director in 1995 when I was appointed Associate Director or Deputy Director. To say that life as Paul’s Deputy was, at times, challenging is an understatement. I learnt from his keen intellect, his forensic judgment, and compassion, and his generosity of spirit. He was a fierce defender of the independence of the DPP. It was a privilege working with him. Sadly, Paul passed away a few years ago. He was always supportive and happy for any success I had; I know he would be happy today.
I worked with some outstanding people in that office, some of whom have become lifelong friends and are here today.
I was fortunate to be given many important opportunities when I was in South Australia.
I came from a State which had appointed the first ever female silk and Supreme Court judge in the country, Dame Roma Mitchell, and where, while I was a junior prosecutor, Catherine Branson AC QC, former judge of this Court, was appointed Crown Solicitor. These, and other women, were role models. In South Australia, I regularly appeared with female junior counsel against female counsel and female silk, including in the High Court.
In 2005, when Damian Bugg QC, then Commonwealth Director of Public Prosecutions, offered me the opportunity to move to New South Wales to have a national practice on retainer to his office, the decision was an easy one. This gave me the opportunity to broaden my legal horizons, both as to the scope of my practice, and the courts in which I would appear.
After arriving in New South Wales I became aware that while there was over 300 silks, there was only about 15 women. In the last 14 years travelling the country I have appeared against a female silk in only a handful of cases, and a couple of those against an old adversary from South Australia. It brought a new level of appreciation for the opportunities that I had been given.
Ruth McColl observed recently at her swearing out, “There is work being done by strong women and men in both ranks of the profession moving towards the goal of true equality.” While the number of female silks in New South Wales has slightly improved, there is still a long way to go.
In 2009, I was warmly welcomed by the members of 12th floor, Wentworth Selborne Chambers. The members of 12 have been supportive colleagues, trusted juniors and dear friends over the last 10 years. I sincerely thank them. Their genuine happiness at my appointment has been overwhelming.
When I moved to private chambers my practice expanded, although I was fortunate to continue to be briefed by the Commonwealth DPP. I thank Justice Bromwich, the then Director, who I might add, is the only person ever to brief me on Christmas day, and Sarah McNaughton SC, the current Director, and their solicitors for their support and the string of interesting and challenging cases they provided me. I also thank those solicitors in other organisations and firms who introduced me to new work, and have kept me busy. A good solicitor is worth their weight in gold, and I am fortunate to have met, and worked with, more than my fair share during the course of my career.
My career has provided me with an incredible opportunity to appear in challenging and complex cases, both at trial level and on appeal, and in different courts around the country, supported by an outstanding group of juniors.
I have been exposed to different Bars, systems and judicial styles and expectations.
I have had the privilege of appearing before some excellent jurists whose keen intellect, judicial conduct and temperament provided inspiration and guidance.
I have seen and experienced the best of people at the Bar. Good people working hard to do their best for their clients and the profession, often in very trying circumstances, embracing the spirit of the Bar and conducting themselves within the best traditions of the law.
The system thrives when respect is shown by barristers to each other, whatever area of law they practice, in whatever court they appear, and whatever side of the Bar table they sit. It thrives when there is a recognition that the adversarial system of justice necessarily means that counsel might put opposing arguments, but that in doing so, they are fulfilling their duty; and when arguments in the courtroom are thoroughly tested and probed within a respectful and courteous environment. The system thrives when opportunities are provided for people to grasp, and diversity within the profession is embraced at all levels.
Practising as a barrister is a very public profession. Often a heavy burden is placed on the shoulders of counsel. In court you are at the mercy of the judge of the day. That is something I am, and hopefully will continue to be, acutely conscious of.
There will be some aspects of the Bar that I will particularly miss.
As I mentioned I have worked with some exceptionally talented, hardworking and dedicated junior barristers. I cannot speak highly enough of them. They have made me look good, and my practice and life so much easier. Many have become good friends. In long cases, like Snowtown, I think my juniors spent more time with me than they did their partners. I will miss that teamwork. I am pleased to see a number of them here today. Many now hold significant positions in the justice system.
It is incredibly rewarding watching people develop and achieve the best they can in whatever they want to do, and I am pleased if I have been able to contribute to that. I might have been able to give others opportunities, encouragement and support, but they have had to grasp them.
I clearly remember the help, reassurance and kindness given by others, and the effect that had on me.
If I could conclude with some personal remarks.
I would not be here today without my family and friends. I won’t mention my friends by name, they know who they are. You have been there for me during the good times, and those more challenging times. I hope you know how much I appreciate that and what your friendship means to me.
To my family, especially my brothers, Bradley and Simon, my sisters-in-law, Julie and Josephine, and to my nieces and nephews, Tom, Georgie, Maddie and Jackson, thank you for your love and unwavering support. Brad and Simon, I know I laughed when father said that I would look to my brothers for help, but he was right. To my nieces and nephews I wear the title “Awesome Aunt” with pride.
To Moreen and Brian, my aunt and uncle – that is father’s younger sister – I am extremely pleased you are here today. You have been more like surrogate parents to us. Moreen, as you know, you are my role model as an aunt.
The hardest thing I have ever had to do was give eulogies at my parents’ funerals, only three months apart. Although, I would have to say, this experience today, even though it’s a happy one, is right up there.
I am looking forward to the next chapter of my life, and am hugely grateful for the opportunity. Thank you.
ALLSOP CJ: The Court will now adjourn.
